HC talks to an employment lawyer about what the recent FWC decision on Australian Federal Police allowances means for your enterprise agreements.
Last week, the FWC heard the case between AFP officers and the AFP, which was based on the selective payment of allowances to officers. This practice reportedly occurred as a result of irregularities between current and former workplace agreements.
According to the Sydney Morning Herald, the commission ruled that it did not have the authority to change the “serious inconsistencies” in the way that allowances were paid.
The case was dismissed on jurisdictional grounds. The FWC said that section 738-9 of the Fair Work Act meant that it could only settle disputes if it enterprise agreements included an agreement that the commission would be entitled to do so. This was not applicable to the AFP officers’ case.
A previous workplace agreement had dictated that AFP officers were entitled to a deployment assistance allowance of up to $5000 per year if their first deployment was to Sydney headquarters. This was applicable even for officers who went on to work at Sydney Airport.
Under the revised agreement, however, Sydney Airport is not deemed a “high cost area”, making officers who are deployed there ineligible to receive the payment.
This meant that from late 2011, officers who were assigned to the airport were not paid the deployment assistance allowance.
“Whether or not one classmate from the [AFP] College in a team receives $5000 a year more or less than another in the same team, arises solely from the coincidence of their first deployment between August and December 2011,” the FWC said in its decision.
The AFP drew up a new employment from 2012-16, which said that only the officers who were eligible under the old agreement would continue to receive the payment.
“Longer serving persons all consistently receive it, and shorter serving persons [deployed from the beginning of 2012] consistently do not,” the commission said.
HC spoke to Alison Spivey, senior associate at People + Culture Strategies, about what employers can deduce from the AFP’s situation.
“The circumstances of this case are limited to what’s happening at the AFP – they had historical arrangements which they’ve tried to include in their new enterprise agreements,” she explained. “Not being privy to what was said during the negotiations leaves the intentions of the parties with respect to those historical arrangements unclear.”
Spivey added that there is a clear message arising from the outcome of the AFP’s case:
1. If the terms of your enterprise agreement are clear and unambiguous, the FWC is unlikely to be willing to intervene and give new meaning to those terms, even if, as in the AFP case, the application of those terms may result in anomalies.
2. This case reinforces the importance of considering, during the bargaining process, if your dispute resolution clause in your proposed enterprise agreement will be appropriate if a dispute arises under that agreement. As was reflected in the AFP decision, the legislation limits the powers of the FWC in resolving disputes under an enterprise agreement to those conferred on the FWC by that agreement. Parties involved in bargaining therefore need to carefully consider how their proposed dispute resolution clause is drafted, including the nature of the powers to be conferred on third parties (whether it be the FWC or another person) to resolve disputes under the agreement, including the power to conciliate and/or arbitrate, and any limits they may want to impose on the exercise of those powers.
Although the FWC agreed with officers’ arguments that they payments were “unfair”, it was ruled that changes could only be brought about by a review.
“This failure to pay the allowance for this small group has had a number of results, which together create this serious inconsistency,” it said.
In a national audit last year, the deployment of AFP officers to national airports was criticised, prompting an increase in the number of officers stationed at Sydney Airport to 118.